Exhibit 4.6
BRIAZZ, INC.
1996 AMENDED
STOCK OPTION PLAN
AMENDED AND RESTATED
STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into as of the date set forth below between BRIAZZ,
INC., a Washington corporation (the "Company"), and the undersigned optionee
(the "Optionee"). Unless otherwise defined herein, the terms defined in the 1996
Amended Stock Option Plan (the "Plan") shall have the same defined meanings in
this Amended and Restated Stock Option Agreement (the "Agreement").
WHEREAS, the Company issued certain options to purchase the
Common Stock of the Company to the Optionee in consideration for his services on
the Board of Directors of the Company at a time when the directors were not
eligible to participate in such option grants under the Plan (the "Non-Plan
Options");
WHEREAS, the Non-Plan Options were made expressly subject to
the terms of the Plan at their times of issuance;
WHEREAS, the Company effected a 100-for-1 reverse split on
July 16, 1999 and a 6-for-1 reverse split on April 2, 2001 (collectively, the
"Stock Splits");
WHEREAS, under the terms of the Plan and the Non-Plan
Options, the terms of the Non-Plan Options automatically adjust to account for
the Stock Splits; and
WHEREAS, the Company and the Optionee now desire to amend
and restate their understandings under the Non-Plan Options to reflect all such
adjustments as of the date hereof;
NOW, THEREFORE, the Company and the Optionee agree that this
Amended and Restated Option Agreement hereby supercedes and replaces the
Non-Plan Options and represents the sole understanding between the Company and
the Optionee with respect to the options granted to the Optionee pursuant to the
Non-Plan Options and the Company agrees to offer to the Optionee the option to
purchase (upon the terms and conditions set forth herein, in the Plan, and in
the notice of grant of stock options and option agreement, attached hereto as
Exhibit A (the "Notice")) the total number of Option Shares set forth in the
first paragraph of the Notice.
1. Options not Transferable. This Option may not be
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transferred in any manner other than by will or by the laws of descent or
distribution and may be exercised during the lifetime of Optionee only by
Optionee. The terms of the Plan and this Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee. Upon
any attempt to transfer, pledge, hypothecate or otherwise dispose of any Option
or of any right or privilege conferred by the Plan contrary to the provisions
thereof, or upon the sale, levy or attachment or similar process upon the rights
and privileges conferred by the Plan, such Option shall thereupon terminate and
become null and void.
2. Investment Intent. By accepting the Option, the
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Optionee represents and agrees that none of the shares of Common Stock purchased
upon exercise of the Option will be distributed in violation of applicable
federal and state laws and regulations. In addition, the Company may require, as
a condition of exercising the Options, that the Optionee execute an undertaking,
in such a form as the Company shall reasonably specify, that the Stock is being
purchased only for investment and without any then present intention to sell or
distribute such shares.
3. Termination of Options.
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(a) Unless otherwise provided for in Section 8 of
this Agreement and Section 5 of the Plan, all unvested Options shall expire upon
any termination of Optionee's employment or contractual relationship with the
Company, whether voluntary or involuntary, or upon the death or Disability of
Optionee.
(b) Unless otherwise provided for in Section 8 of this
Agreement and Section 5 of the Plan, all vested Options shall expire at the
earliest of the following:
(1) ten (10) years from the date of the
Notice; provided, however, that the
expiration date of any Incentive Stock
Option granted to a greater-than-10%
shareholder shall not be later than
five (5) years from the date of Grant;
(2) three (3) months after voluntary or
involuntary termination of Optionee's
employment or contractual relationship
with the Company other than termination
as described in Paragraphs (3) or (4)
below;
(3) upon termination of Optionee's
employment or contractual relationship
with the Company for cause (as
determined in the sole discretion of
the Plan Administrator); or
(4) one (1) year after the termination of
Optionee's employment or contractual
relationship with the Company on
account of Optionee's death or
Disability.
4. Adjustments to Total Number of Option Shares. In the case of
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any stock split, stock dividend or like change in the nature of shares of Common
Stock covered by this Agreement, the number of Option Shares set forth in the
Notice and the Exercise Price set forth in the Notice shall be proportionately
adjusted in accordance with Section 5(m) of the Plan.
5. Exercise of Option. Options shall be exercisable, in full or
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in part, at any time after vesting, until termination; provided, however, that
any Optionee who is subject to the reporting and liability provisions of Section
16 of the Securities Exchange Act of 1934 with respect to the Common Stock shall
be precluded from selling or transferring any Common Stock or other security
underlying an Option during the six (6) months immediately following the grant
of that Option. If less than all of the shares included in the vested portion of
any Option are purchased, the remainder may be purchased at any subsequent time
prior to the expiration of the Option term. No portion of any Option for less
than one hundred (100) shares (as adjusted pursuant to Section 5(m) of the Plan)
may be exercised: provided, that if the vested portion of any Option is less
than one hundred (100) shares, it may be exercised with respect to shares for
which it is vested. Only whole shares may be issued pursuant to an Option, and
to the extent that an Option covers less than one (1) share, it is
unexercisable.
Each exercise of the Option shall be by means of delivery of
a notice of election to exercise (which may be in the form attached hereto as
Exhibit B to the Secretary of the Company at its principal executive office,
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specifying the number of shares of Common Stock to be purchased and accompanied
by payment in cash by certified check or cashier's check in the amount of the
full exercise price for the Common Stock to be purchased. In addition to payment
in cash by certified check or cashier's check, an Optionee may pay for all or
any portion of the aggregate Exercise Price by complying with one or more of the
following alternatives:
(a) with the prior approval of the Plan Administrator,
by delivering to the Company shares of Common Stock previously held by such
person, which shares of Common Stock shall have a fair market value at the date
of exercise (as determined by the Plan Administrator) equal to the aggregate
purchase price to be paid by the Optionee upon such exercise;
(b) by delivering a properly executed exercise notice
together with irrevocable instructions to a broker promptly to sell or margin a
sufficient portion of the shares and deliver directly to the Company the amount
of sale or margin loan proceeds to pay the exercise price; or
(c) by complying with any other payment mechanism
approved by the Plan Administrator at the time of exercise.
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It is a condition precedent to the issuance of shares of Common Stock that the
Optionee executes and delivers to the Company a Stock Transfer Agreement, in a
form acceptable to the Company, to the extent required pursuant to the terms
thereof.
6. Type of Option; Tax Consequences. Unless otherwise
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provided for in the Notice, Options granted in accordance with the Plan shall be
Non-Qualified Stock Options ("NSO"). If the Notice provides that Options granted
to Optionee are Incentive Stock Options ("ISO"), such Options are intended to
qualify as Incentive Stock Options under Section 422 of the Code. Set forth
below is a brief summary as of the date of this Agreement of some of the federal
tax consequences of exercise of this Option and disposition of the Option
Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS
ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE
EXERCISING THIS OPTION OR DISPOSING OF THE OPTION SHARES.
(a) Exercise of NSO. There may be a regular federal
income tax liability, at ordinary income tax rates, upon the exercise of an NSO.
If Optionee is an Employee or a former Employee, the Company will be required to
withhold from Optionee's compensation or collect from Optionee and pay to the
applicable taxing authorities an amount in cash equal to a percentage of this
compensation income at the time of exercise, and may refuse to honor the
exercise and refuse to deliver Shares if such withholding amounts are not
delivered at the time of exercise.
(b) Exercise of ISO. If this Option qualifies as an
ISO, there will be no regular federal income tax liability upon the exercise of
the Option, although the Optionee may be subject to the alternative minimum tax
in the year of exercise.
(c) Disposition of Shares. The disposition of
Option Shares is generally a taxable event. The tax treatment will depend on
whether the Option is an ISO or an NSO, and on the length of time for which
Optionee has held the Option Shares.
7. Notice of Disqualifying Disposition of ISO Shares. If
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the Option granted to Optionee herein is an ISO, and if Optionee sells or
otherwise disposes of any of the Option Shares acquired pursuant to the ISO on
or before the later of (1) the date two years after the Date of Grant, or (2)
the date one year after the date of exercise, the Optionee agrees to report
sales of such shares prior to the above determined date to the Company within
one (1) business day after such sale is concluded. The Optionee also agrees to
pay to the Company, within five (5) business days after such sale is concluded,
the amount necessary for the Company to satisfy its withholding requirement
required by the Code in the manner specified in Section 5(l)(2) of the Plan.
Nothing in this Section 6 is intended as a representation that Common Stock may
be sold without registration under state and federal securities laws or an
exemption therefrom, or that such registration or exemption will be available at
any specified time
8. Change in Control.
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(a) Notwithstanding the vesting schedule set forth
in the Notice, and subject to the Provisions of Section 13 below, the right to
purchase all Option Shares shall vest, and the Optionee may purchase up to the
full extent of Option Shares for which Options have been granted to such
Optionee and for which the Options have not been exercised under the following
conditions:
(1) The Optionee may conditionally
purchase, any or all Option Shares during the period commencing twenty-seven
(27) days and ending seven (7) days prior to the scheduled effective date of a
merger or consolidation (as such effective date may be delayed from time to
time) wherein the Company is not to be the surviving corporation, which merger
or consolidation is not between or among the Company and other corporations
related to or affiliated with the Company;
(2) The Optionee may conditionally
purchase any or all Option Shares during the period commencing on the initial
date of a tender offer or takeover bid for the Option Shares (other than a
tender offer by the Company) subject to the Securities Exchange Act of 1934 and
the rules promulgated thereunder and ending on the day preceding the scheduled
termination date of acceptance of tenders of shares by the offeror under any
such tender offer or takeover bid (as such termination date may be extended by
such offeror);
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(3) The Optionee may conditionally purchase any
or all Option Shares during the period commencing an the date the shareholders
the Company approve a sale of all or substantially all the assets of the Company
of and ending seven (7) days prior to the scheduled closing date of such sale
(as such closing date may be delayed from time to time); and
(4) The Optionee may conditionally purchase any
or all Option Shares during the period commencing on the date the Company files
a Statement of Intent to Dissolve and ending thirty (30) days later but not in
any event later than the day before the Company files Articles of Dissolution.
(b) If the merger, consolidation, tender offer, takeover
bid, sale of assets or dissolution, as the case may be, and as described in
Subsections (1) through (4) of Section 8(a), once commenced, is cancelled or
revoked, the conditional purchase of shares for which the Option to purchase
would not have otherwise been exercisable at the time of said calculation or
revocation, but for the operation of Section 8(a), shall be rescinded. With
respect to all other shares conditionally purchased, the Optionee may rescind
such purchase at his or her option.
(c) If the merger, consolidation, tender offer, takeover
bid or sale of assets does occur or thirty (30) days passes after a Statement of
intent to Dissolve is filed (or Articles of Dissolution are filed), as the case
may be, and as described in Subsections (1) through (4) of Section 8(a), and the
Optionee has not conditionally purchased all Option Shares, all unexercised
Options shall terminate on the effective, termination or closing date, or thirty
(30) days after the Statement of Intent to Dissolve is filed (but not later than
the day before Articles of Dissolution are filed), as the case may be.
(d) If the Company shall be the surviving corporation in
any merger or is a party to a merger or consolidation which is between or among
the Company and other corporations related to or affiliated with the Company,
any Option granted hereunder shall pertain and apply to the securities to which
a holder of the number of shares of common stock subject to the option would
have been entitled upon the consummation of such merger or consolidation.
(e) Nothing herein shall allow the Optionee to purchase
Option Shares, the Options for which have expired.
(f) Section 5(n) of the Plan provides that any and all
options that are outstanding under the Plan will become immediately vested and
fully exercisable during specified exercise periods following the occurrence of
certain events involving a change in control of the Company. Section 5(n) of the
Plan also provides that if the shareholders of the Company receive shares of
stock of another company in a transaction providing for the conversion or
exchange of all or substantially all of the outstanding shares of Common Stock,
then options granted under the Plan will become exercisable for a number of
shares of stock of the other company determined using the same conversion or
exchange ratio applicable to the transaction, unless the Board of Directors of
the Company determines that some or all of such options shall instead terminate.
9. Subject to 1996 Stock Option Plan. The terms of the Options
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are subject to the provisions of the Plan, as the same may from time to time be
amended, and any inconsistencies between this Agreement and the Plan, as the
same may be from time to time amended, shall be governed by the provisions of
the Plan, a copy of which has been delivered to the Optionee, and which is
available for inspection at the principal offices of the Company.
10. Plan Subject to Change. The Plan and the policies governing
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grants of Options under the Plan, including, without limitation, grant timing,
vesting schedules, and eligibility standards, are subject to change at any time
after the date of this Agreement by the Board of Directors of the Company or its
Compensation Committee.
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11. Professional Advice. The acceptance of the Options and the
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sale of Common Stock issued pursuant to the exercise of Options may have
consequences under federal and state tax and securities laws which may vary
depending upon the individual circumstances of the Optionee. Accordingly, the
Optionee acknowledges that he or she has been advised to consult his or her
personal legal and tax advisor in connection with this Agreement and his or her
dealings with respect to Options for the Common Stock. Without limiting other
matters to be considered, the Optionee should consider whether upon the exercise
of options, the Optionee will file an election with the Internal Revenue Service
pursuant to Section 83(b) of the Code.
12. No Employment Relationship. Whether or not any Options are
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to be granted under the Plan shall be exclusively within the discretion of the
Plan Administrator, and nothing contained in the Plan or this Agreement shall be
construed as giving any person any right to participate under the Plan. The
grant of an Option shall in no way constitute any form of agreement or
understanding binding on the Company or any related company, express or implied,
that the Company or any related company will employ or contract with an Optionee
for any length of time, nor shall it interfere in any way with the Company's, or
where applicable, a related company's right to terminate Optionee's employment
at any time, which right is hereby reserved.
13. Securities Laws. Notwithstanding the foregoing, no Option
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shall vest or be exercisable unless and until all requirements imposed by or
pursuant to Section 5(l) of the Plan are satisfied.
SECTION 5(l) OF THE PLAN DESCRIBES CERTAIN IMPORTANT CONDITIONS
RELATING TO FEDERAL AND STATE SECURITIES LAWS THAT MUST BE SATISFIED BEFORE THIS
OPTION CAN BE EXERCISED AND BEFORE THE COMPANY CAN ISSUE ANY OPTION SHARES TO
THE OPTIONEE. THE COMPANY HAS NO OBLIGATION TO REGISTER THE OPTION SHARES. THE
OPTIONEE WILL NOT BE ABLE TO EXERCISE THIS OPTION UNLESS SUCH ARE REGISTERED OR
AN EXEMPTION FROM REGISTRATION IS AVAILABLE. AT THE PRESENT TIME, EXEMPTIONS
FROM REGISTRATION UNDER FEDERAL AND STATE SECURITIES LAWS ARE VERY LIMITED AND
MIGHT BE UNAVAILABLE TO THE OPTIONEE PRIOR TO THE EXPIRATION OF THIS OPTION.
CONSEQUENTLY, THE OPTIONEES MIGHT HAVE NO OPPORTUNITY TO EXERCISE THIS OPTION
AND TO RECEIVE OPTION SHARES UPON SUCH EXERCISE.
Notwithstanding the foregoing, the Company may restrict the Optionee's
right to purchase Option Shares after a public offering of Common Stock pursuant
to the Securities Act of 1933, as amended, until a date ninety (90) days
following completion of the public offering.
14. Entire Agreement. This Agreement is the only agreement
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between the Optionee and the Company with respect to the Options, and this
Agreement and the Plan supersede all prior and contemporaneous oral and written
statements and representations, including, but not limited to, the Non-Plan
Options, and contain the entire agreement between the parties with respect to
the Options.
15. Notices. Any notice required or permitted to be made or
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given hereunder shall be mailed or delivered personally to the addresses set
forth below, or as changed from time to time by written notice to the other:
The Company: BRIAZZ, INC.
0000 0/xx/ Xxx., Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
The Optionee: (As set forth in the Notice)
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Optionee acknowledges receipt of the Notice and a copy of the Plan. Optionee
represents that he or she is familiar with the terms and provisions thereof, and
hereby accepts this Option subject to all of the terms and provisions thereof.
Optionee has reviewed the Plan, the Notice and this Option Agreement in their
entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Option and fully understands all provisions of the Option.
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Plan Administrator upon any questions arising under
the Plan or this Option. Optionee further agrees to notify the Company upon any
change in the residence address indicated in the Notice.
BRIAZZ, INC.
By: /s/ Xxxxx X. Xxxxxx October 22, 2001
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Date
Its: Chief Financial Officer
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OPTIONEE
/s/ Xxxxxx Xxxxxxx October 12, 2001
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Xxxxxx Xxxxxxx Date
THERE MAY NOT BE PRESENTLY AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS FOR
THE ISSUANCE OF SHARES OF STOCK UPON EXERCISE OF THESE OPTIONS. ACCORDINGLY,
THESE OPTIONS CANNOT BE EXERCISED UNLESS THESE OPTIONS AND THE SHARES OF STOCK
TO BE ISSUED UPON EXERCISE OF THE OPTIONS ARE REGISTERED OR AN EXEMPTION FROM
SUCH REGISTRATION REQUIREMENTS IS AVAILABLE.
THE SHARES OF STOCK ISSUED PURSUANT TO THE EXERCISE OF OPTIONS
WILL BE "RESTRICTED SECURITIES" AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT
OF 1933 AND WILL BEAR A LEGEND RESTRICTING RESALE UNLESS THEY ARE REGISTERED
UNDER STATE AND FEDERAL SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE. THE COMPANY IS NOT OBLIGATED TO REGISTER THE SHARES OF STOCK OR TO
MAKE AVAILABLE ANY EXEMPTION FROM REGISTRATION.
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EXHIBIT A
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Briazz Inc.
Notice of Grant of Stock Options ID: 00-0000000
and Option Agreement 0000 0xx Xxx. Xx, Xxxxx 000
Xxxxxxx, XX 00000
________________________________________________________________________________
Xxxxxx Xxxxxxx Option Number: 00000000
Street Plan: 1996
City, State Zip ID: 0000001
________________________________________________________________________________
Effective as of the individual dates of grant of the Non-Plan Options, you have
been granted a Non-Qualified Stock Option to buy 12,337 shares of Briazz Inc.
(the "Company") common stock at the prices per share set forth below (the
"Shares"):
Original
Date of Grant Number of Shares Price Per Share Total Price
------------- ---------------- --------------- -----------
June 1, 1996 261 $1,632.00 $425,952.00
October 18, 1996 167 $600.00 $100,200.00
August 15, 1997 193 $3,900.00 $752,700.00
August 29, 1997 49 $3,900.00 $191,100.00
November 1, 1999 10,000 $6.00 $60,000.00
November 1, 2000 1,667 $1.50 $2,500.50
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TOTALS: 12,337 - $1,532,452.50
The total option price of the Shares is One Million Five Hundred Thirty Two
Thousand Four Hundred Fifty Two Dollars and Fifty Cents ($1,532,452.50.)
The Shares are fully vested.
________________________________________________________________________________
By your signature and the Company's signature below, you and the Company agree
that these options are governed by the terms and conditions of the Company's
Stock Option Plan as amended and the Amended and Restated Option Agreement, all
of which are attached and made a part of this document.
________________________________________________________________________________
/s/ Xxxxx X. Xxxxxx October 22, 2001
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Briazz Inc. Date
/s/ Xxxxxx Xxxxxxx October 12, 2001
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Xxxxxx Xxxxxxx Date
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EXHIBIT B
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Notice of Election to Exercise
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This Notice of Election to Exercise shall constitute proper
notice pursuant to Section 5(h) of the BRIAZZ, INC. 1996 Amended Stock Option
Plan (the "Plan") and Section 5 of that certain Amended and Restated Stock
Option Agreement (the "Agreement") dated as of the ____ day of __________ 2001
between BRIAZZ, INC. (the "Company") and the undersigned Optionee ("Optionee").
Optionee hereby elects to exercise Optionee's option to
purchase ___________ shares of the common stock of the Company at a price of
$__________ per share, for aggregate consideration of $__________, on the terms
and conditions set forth in the Agreement and the Plan. Such aggregate
consideration, in the form specified in Section 5 of the Agreement, accompanies
this notice.
The undersigned have executed this Notice this ____ day of
__________, 200_.
Submitted by: Accepted by:
OPTIONEE BRIAZZ, INC.
____________________________________ _____________________________________
Signature By
____________________________________ _____________________________________
Print Name Title
Address: Address:
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____________________________________ _____________________________________
____________________________________ _____________________________________
_____________________________________
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